Madison was like another politician, who said he was against the bill of rights before he was for it.

I believe the anti-BOR argument is best presented in Federalist 84, by Alexander Hamilton.

After all of this, we now see that the BOR is subject to the ruler's interpretation. And we have seen that Hamilton's warning that it would bring claims of "rights not granted" most accurate.

One of Madison's more notable speeches is next:

If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their Own hands; they may a point teachers in every state, county, and parish, and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision for the poor; they may undertake the regulation of all roads other than post-roads; in short, every thing, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress; for every object I have mentioned would admit of the application of money, and might be called, if Congress pleased, provisions for the general welfare.

James Madison in the House of Representatives, February 3, 1792; on the Cod Fishery Bill and granting bounties

Even though the founders understood human nature and dirty politics, they, like everybody else, had more to learn. I believed that they wanted a simple constitution because the anti-federalists were very suspicious of anything that was too big. That is probably why the BOR was an add-on; it showed that the Constitution had some flexibility.

The first session of congress is referred to some historians as a continuation of the Constitutional Convention. I am now reading a book that has some good information on that session; it's quite interesting.

42 posted on 03/29/2009 11:39:22 AM PDT by Loud Mime
(Things were better when cigarette companies could advertise and Lawyers could not.)

A Bill of Rights was standard form at the state level back in those days. It's a bit surprising they didn't assume they'd have one and get Adams/Jefferson to draw it up.

I don't think it's fair to paint Madison as a politician on the issue. I think he was a great steward of the Constitution. He believed in it and did everything he could for it. He made an honest deal with the people of Virginia and kept up his end of the bargain. The politician's move would have been to promise to bring it up right away, and then bury it, or add a poison pill, or simply change your tune and reneg on your promise. He kept his word and did so with honor. He allowed republicanism to work. He helped it work.

I think the founders would primarily blame the people for the failures. But they would also see some structural weaknesses that could have been avoided. They made a gamble on the people. They knew it was iffy. I think if they could do it over again, they'd be much, much more precise about the limitations on gubmint power. They thought it absurd, and uneccessary. They were wrong. It needed to be spelled out like a laundry list in the plainest language.

Even the Bill of Rights crowd got it wrong in the end. Just as an example...the 10th amendment-an utterly toothless waste of ink.

Instead of the weak disclaimer being the substance of the amendment...

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people"

It should read: The following powers are reserved to the States and are completely outside the jurisdiction of the Federal Government:

Followed by an exhaustive list of every imaginable thing. And then, at the end of all that, the 10th amendment would be a catch-all disclaimer, with about as much force to it as one might realistically expect.

I know they thought they had spelled out just what the limits were already. They thought it unnecessary. I think they were dead wrong on that, and should have added a few extra layers of explicit security.

Just imagine if they had dealt with the issue of secession. A lot of trouble could have been avoided there.

Hamilton, like Madison, presumed that the Constitution itself was safe from perversion. That the loopholes weren't going to work. I'm just saying if they could do it over, I'll bet they'd make it even clearer and more iron clad. Even the most cautious got it wrong, and allowed the Federal branch too much power and leeway.